Judge rules Cape Breton Regional Police overstepped powers

Published on April 10, 2014

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SYDNEY — A Supreme Court judge has ruled Cape Breton Regional Police exceeded their authority in entering a North Sydney home in 2012 and stumbling across several marijuana plants resulting in charges against one resident.

Justice Patrick Murray ruled that the seizure by police violated the charter right of 36-year-old George Thomas Johnston to be protected against unreasonable search and seizure.

"There is not an easy answer except to say that caution must be exercised where the sanctity of a private residence is concerned. Judgment calls will still be required. That will not change. Police must continue to be practical," wrote Murray, in a decision released Wednesday.

In addition to ruling the seizure of the plants was illegal, Murray also ruled the Crown could not enter the plants into evidence against Johnston who was charged with possession for the purpose of trafficking and with producing marijuana.

As a result, the charges against Johnston were dismissed.

It was Feb. 13, 2012, when police were alerted by an employee from Easyhome Rentals reporting a possible break and enter at a home on Pierce Street.

The employee had been to the location to serve notice of an overdue payment and entered through an open door. He told police the home appeared in disarray and thought there may have been a break-in.

In his decision, Murray noted the primary reason for the call to police was to cover himself in case the property had indeed been illegally entered.

Const. Anthony Melski was dispatched to the scene and found the Easyhome business card in the front door but the door was locked.

He entered the home through a side door calling out as he walked that he was a police officer. He found no one but a dog and a cat whom he described as acting strangely.

While he noticed the home was in disarray, he also spotted a big screen television and a computer which he later concluded offered evidence there was no break-in.

However, the officer could smell furnace oil and walked down a few steps of the basement stairs, shined a light and then went to the second floor of the home.

He opened the first bedroom door and found several pot plants and a heat lamp. Additional plants were found in another bedroom.

The home was secured, a search warrant granted and the plants were seized.

Prosecutor Wayne MacMillan argued the seizure was legal because police were executing their common law powers to investigate crime and ensure human safety.

Defence lawyer Bill Burchell argued there was no solid evidence of a break-in nor any imminent danger or harm to anyone. He said no effort was made to contact the homeowners.

During the trial, Melski testified when he saw the computer and television, he realized there was no break-in. He testified without his police notes because he had misplaced them.

Const. Melissa MacDonald also testified, having arrived on scene after Melski, and Murray noted she made no reference in her notes or her testimony of any strong odours.

"In my view, there is a lack of corroboration from Const. MacDonald that it was the strong smell that warranted the search of the second-floor rooms," said Murray.

The judge concluded that while Melski was justified in entering the home, based on the possibility of a break and enter, there was a shift in police focus once inside after determining there was no break and enter.

Murray said police exceeded their power in continuing to search the home and opening up the bedroom doors and that the expectation of privacy in such a room is higher than any other area of a home.

"Once the police determined there was no break and enter, the reason for the call had ended," said the judge.

Murray concluded that police knew they were on thin ice when it became apparent no crime was committed.

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